Biton v. NYCTA/MTA
MEMORANDUM AND ORDER: Plaintiff's 2 requests to proceed in forma pauperis is granted pursuant to 28 U. S. C. § 1915 solely for the purpose of this Order. Plaintiff's complaint filed in forma pauperis is dismis sed as frivolous. The Court takes this opportunity to again warn plaintiff that it will not tolerate frivolous filings. Should plaintiff persist in filing frivolous actions, the Court may enter an Order barring plaintiff from filing any future in forma pauperis complaints without first obtaining leave of the Court to do so. The Court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal from this Order would not be taken in good faith. SO ORDERED by Chief Judge Carol Bagley Amon, on 6/19/2012. C/mailed to pro se Plaintiff. (Latka-Mucha, Wieslawa)
IN CLERK'S OFFICE
u.S. OlSTRICT COURT E.D.N.Y.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-t~ JUN 1 9 2012
NOT FOR PUBLICATION
AMON, Chief Judge:
Plaintiff, Danielle Biton appearing pro se, brings this action against the New York City
Transit Authority ("NYCTA") and the Metropolitan Transportation Authority. Plaintiffs
requests to proceed in forma pauperis is granted pursuant to 28 U. S. C. § 1915 solely for the
purpose of this Order. Plaintiffs complaint is dismissed for the reasons stated below.
This is plaintiff Danielle Biton's fourth action in this court; all make largely
indecipherable allegations. In her first action, Bitton v. State of New York et aI., 09-CV-2831
(CBA) filed on June 26, 2009, plaintiff was given two separate opportunities to amend her
complaint. In her amended complaint, submitted September 11, 2009, plaintiff added nearly fifty
new defendants including inter alia, Secretary of State Hilary Clinton, the Republic of China, the
Internal Revenue Service, and the Securities and E}(change Commission, but she did not make
any allegations against the old or the new defendants. The sole lucid statement was that she
1Plaintiff filed this complaint on May 23,2012 naming herself as the "respondent" and "NCYTAIMTA" as
the plaintiff. The Court has corrected the caption to reflect the Biton is the plaintiff and NYCT AIMTA are the
wanted her "rights and property to be restored before the United States Government and the
British Government. " On October 13,2009, plaintiff submitted a Second Amended Complaint
in response to this Court's September 23, 2009 Order which allowed her a chance to set forth her
Privacy Act claim, if any. In the Second Amended Complaint, plaintiff again failed to allege a
basis for the exercise of this Court's subject matter jurisdiction, and the Court could not discern
any. Moreover, the Court found the Second Amended Complaint irrational and therefore
frivolous. Accordingly, by Order dated November 2,2009, the action was dismissed for lack of
subject matter jurisdiction, Fed. R. Civ. P. 12(h)(3), and because the Court deemed the complaint
frivolous, 28 U.S.C. § 1915(e)(2)(B)(i).
Shortly thereafter, on November 20, 2009, plaintiff filed a second action. Biton v. Wilmer
Hale Grier, 09-CV-5375 (CBA). Again, despite its best efforts, the Court could not ascertain the
basis for plaintiffs claim, only that she felt wronged by the American and British judicial
systems. By Order dated February 19,2012, plaintiffs action was dismissed as frivolous.
On January 27,2010, plaintiff filed her third action; this time her mother, Saphyre
Redford, was her co-plaintiff. Redford v. Chicago Title Insurance, 10-CV-434 (CBA)(LB).
Again, the Court, faced with an incomprehensible complaint, dismissed the action as frivolous.
28 U.S.C. § 1915(e)(2)(B)(i). Furthermore, the Court warned plaintiff that if she persisted in
filing frivolous actions, the Court would enter an Order barring the acceptance of any future in
forma pauperis complaints unless the plaintiff first obtained leave to file from the Court. 28
U.S.C. § 1651;
In re Martin-Trigona, 9 F.3d 226,227-29 (2d Cir. 1993); Iwachiw v.
N.Y. State Dep't of Motor Vehicles, 396 F.3d 525, 529 (2d Cir. 2005).
Despite the Court's warning, plaintiff submitted the instant complaint on May 23,2012.
It is, once again, incomprehensible. The statement of claim includes allegations such as "The
NYCT A uses the NYPD to target me & harass me & follow me wherever I go. I refuse to be
greymailed and my health that I suffer from skin allergies, swelling, & sinusitis was caused by
the NYCTAIMTA who committed acts of terrorism on me on 27 January 2010 by exposing me
to lethal gas, as well as to toxic water ... "
Under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an in forma pauperis
action where it is satisfied that the action is "(i) frivolous or malicious; (ii) fails to state a claim
on which relief can be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief." An action is "frivolous" when either: "(1) the factual contentions are clearly
baseless, such as when allegations are the product of delusion or fantasy; or (2) the claim is based
on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d
434, 437 (2d Cir. 1998) (internal quotations omitted).
In Denton v. Hernandez, 504 U.S. 25 (1992), the Supreme Court noted that:
the in forma pauperis statute, unlike Rule 12(b)(6) [of the Federal
Rules of Civil Procedure] "accords judges not only the authority to
dismiss a claim based on an indisputably meritless legal theory, but
also the unusual power to pierce the veil of the complaint's factual
allegations and dismiss those claims whose factual contentions are
Denton, 504 U.S. at 32 (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). "[A]
finding of factual frivolousness is appropriate when the facts alleged rise to the level of the
irrational or the wholly incredible whether or not there are judicially noticeable facts available to
contradict them." Id. at 33.
The Court finds that the complaint is irrational and completely devoid of merit. There is
nothing in the complaint that alleges a federal cause of action against the named defendants.
Insofar as plaintiff cursorily alleges she was issued a summons without probable cause by
the New York City Police Department on May 21, 2012, she does not name the proper defendant
for such a claim - i. e., the NYPD officer who issued the summons - and does not allege with any
clarity the surrounding facts that would be necessary to state a plausible cause of action. Should
plaintiff seek to pursue this claim, she may file a new action that names the proper defendant,
clearly identifies her cause of action, and sets forth specific facts to support that claim. If
plaintiff cannot identify the necessary defendant, she may designate her or him as John or Jane
Doe and provide any identifying information of which she is aware, such as a physical
description, precinct and/or the location of the incident.
Accordingly, plaintiffs complaint filed in forma pauperis is dismissed as frivolous. 28
U.S.C. § 1915(e)(2)(B)(i). The Court takes this opportunity to again warn plaintiff that it will not
tolerate frivolous filings. Should plaintiff persist in filing frivolous actions, the Court may enter
an Order barring plaintiff from filing any future in forma pauperis complaints without first
obtaining leave of the Court to do so. 28 U.S.C. § 1651; see In re Martin-Trigona, 9 F.3d 226,
227-29 (2d Cir. 1993); Iwachiw v. N.Y. State Dep't of Motor Vehicles, 396 F.3d 525, 529 (2d
Cir. 2005). The Court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal from this
Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45
/Signed by Judge Amon/
Carol Bagley Amon
Chief United States District Judge
Dated: ~~~~.l~, New York
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